What happened in 2010 that started this change? Could it be the fact that Republicans took control of the House of Representatives? Is that the same as a change in the statutes or regulations? What do Republicans have against the intellectually disabled? What do they have against those suffering from mental illness? And the biggest question -- why should a change in the control of Congress affect how Social Security determines disability?

52 comments:

Anonymous
said...

It makes a stronger case for SSA adjudicator behavior being effected by political pressure. I seem to recall some prominent republicans in congress publicly mocking people claiming benefits for mental disability. The same group in congress has shown its willingness to single out and try to publicly bully SSA ALJs.

I would be interested to hear theories on other possible causes for the precipitous drops in ID and mental illness based disability benefit approvals. I am not aware of any major SSA rule changes between 2010 and 2014 regarding mental illness and disability but I may have missed some.

Is Obamacare working so well that there are now fewer people with disabling mental illness? It would be interesting to see if the number of people seeking and receiving regular mental health treatment and prescription therapy has increased greatly between 2010 and 2014. That could potentially drive some numbers for mental illness disability other than intellectual disability. Intellectual disability is typically incurable so better access to therapy would not help that. I suspect that more available treatment would have trouble explaining the size of the drop in awards but it would make an interesting study.

My guess is it has more to do with new DC of ODAR implementing increased quality measures, lowering the maximum dispositions for ALJs per year, and instituting more appeals council reviews for writers and ALJs in the name of improving quality.

In my experience, the agency really isn't that political. It's almost as if you believe that ALJs or the appeals council get like some sort of memo from management that's like 'alright guys lets turn down those mental illness allowances' In reality, mgmt. has little reason to have much contact with ALJs (See Generally ALJs not performance rated, and no (maybe 1) ALJ has ever been fired for performance in the history of ODAR) Even if it was that political, its unlikely an administrative agency would be afraid of an opposing house when they have the senate and the president. Colvin was not trying to get confirmed by the house. OMB would have shut down any new reg contrary to President Obama's policy.

There is probably some other cause that just coincidentally happened or came to fruition in 2010.

I think other explanations are more likely. I may have lost count, but I believe the agency has proposed regulations on three separate occasions which would significant tighten the listing for intellectual disability. For reasons beyond my pay grade no final regulations have been issued. I believe the agency has taken "interim" measures in response to its inability to change the listings. Most importantly, the state agencies have vastly reduced the number of IQ tests purchased. What use to be a routine part of any psychological CE has become a rarity. Second, the agency and CE sources have more carefully scrutinized the validity of test results. Third, the agency has stressed that a diagnosis of intellectual disability can never be made based upon an IQ score alone, but must be supported by evidence of deficits in adaptive functioning which were present prior to age 22. While this is accurate, it allows for many denials based upon a subjective judgment regarding adaptive functioning.

Try looking at the numbers as percentages of applications. Yearly applications for DI (and SSI) peaked in 2010. ID applications peaked in 2009. In other words, convince me this is an issue just for these groups, not an overall trend in DI.

pre-Huntingdon, if you wanted to get rid of a case quickly, you could just look for an IQ score of less than 70, and bam! 12.05. done.

oh, the claimant was never in special education classes, worked at a skilled SVP 7 job for 20 years without issue including supervising a fleet of 20 people, all while raising a family of 7 as a single parent? yea, just brush that under the rug.

post Huntingdon those 12.05 FFs with no evidence of deficits in adapative functioning, and/or evidence to suggest that the current IQ is bogus aren't getting paid anymore.

@9:38AM, while its true that there were a few of the cases you described getting paid Pre-Huntington, they were few and far between. The easier way was SSR 85-15 or 96-8p.

But Post-Huntington, even the well supported 12.05 cases are being denied by ALJ's who are fearful of getting reversed by the AC. 12.05 cases seem to be ones ripe for further scrutiny and its easier to deny a 12.05 by just saying not enough evidence of adaptive deficits, and cite something like they can put on clothes, tie their shoes, and once worked for a week as evidence to back it up.

It took me 6 years to get a no brainer ID case approved. First ALJ went out of the way to say no adaptive deficits. We got a stipulated remand in USDC because it was so bad. 4 sets of Listing level IQ scores dating back to age 18, lifelong history of involvement with county board of DD, special ed placement throughout school, and only supported work activity through county board of DD weren't enough for the first ALJ (who did a VTC hearing by the way). We finally got to have a face to face hearing with an ALJ on remand and he was convinced within minutes of meeting the claimant.

@ 6:58. Exactly. I've worked at SSA for a while at the staff and now management level. We never hear of or experience any "political pressure." My guess is that the changes are due to several reasons, including better training, increased QA oversight and hiring of "better" ALJs that understand the law.

LOL @ 10:03AM, "better" ALJs means ones that will follow lock step the dictates of the Agency and not dare attempt to have any idea of judicial independence. I think that is what you really mean by better.

I have heard from ALJs that decision writers now are making them change their decisions. Seems as though the Agency has learned it can control ALJs by (1) giving them impossible production goals, (2) hiring new (and it seems younger)ALJs who are just happy to have a job and wouldn't do anything to jeopardize a lifetime gig , and (3) now having staff push the Agency agenda against the ALJs as well.

@1047 I think by better ALJs he/she means ones that follow the law. I still see judges who think SSRs don't apply to them, some judges continue to fail to understand that they are merely agents of the commissioner rather than article 3 judges. I also don't think the agency has an agenda. Even if it did you have had a commissioner and president favorable to claimant's for the past 7 years but the reps here still complain constantly, what are you going to do when ted cruz is running this shop?

I'm a writer, writers don't make judges change their decisions. I understand that its their decision and they are free to violate the law without consequence. See writers are actually performance rated unlike judges so our performance rating used for promotion and bonus purposes correlates, at least partially, to our agree rate. So we try to write cases that follow the law so they don't get remanded. If a set of instructions is blatantly contrary to the law I will ask for clarification if still wrong I will send back to my supervisors. Our hearing office chief judge has directed the judge himself to draft incorrect decisions on a few occasions. There is a difference between judicial independence/discretion and just erroneous application of the law.

I think what is happening here is all the NOSCCR reps talk to the AALJ reps and members and they all despise SSA mgmt. so you feed off each other and propagate these conspiracy theories but no one actually produces proof of a agency encroachment on decision making.

I am 10:03. When I say "better ALJs" I mean ones that follow the law. I used to be a decision writer, have now moved on. As 12:09 notes, I have NEVER heard of a decision writer making an ALJ change their decision. What I have seen, done and heard of is decision writers advising the ALJ's that their instructions are contrary to law, sometimes resulting in a revised instruction and ultimately a changed disposition. This goes both ways, sometimes an ALJ wants to deny but the claimant "GRIDs" or meets a listing, other times the ALJ wants to pay but the evidence shows work is available.

As 12:09 notes and as I have posted here, there is no conspiracy theory, no mandate from management to deny/pay (whatever the flavor of the month is) or any pressure whatsoever to ever have a specific outcome in any case or class of case. However, there is a lot of pressure to produce quality decisions (i.e. follow the law).

Over the past few years, this has lead some ALJs to think more critically about their decisions, ultimately leading to more denials.

12:33 "a lot of pressure to follow the law" is hard to prove. I don't see any sustained leadership of the disability program that would generate such pressure.

There are no statistics to prove that the agency has "increased quality" of ALJ decisions. The Appeals Council does not provide statistics regarding quality and production. However, SSA does document the remand rate. The AC, by decreasing their remands, have contributed to the decrease in mental allowances. This because you have a percentage of ALJs who apply their own agenda and deny mental cases with impunity.

As far as the levels below such as DDS, the quality statistics are available and I doubt the national quality has varied much in the last 10 years. Having worked many years with SSA, I can say that all adjudicators with an agenda can get away with denying valid claims and decrease in mental allowances would appear to prove that. Republicans have been ruthless in attacking the disabled for the years cited. Adjudicators respond to political pressure. The good ones just do not ignore the law. That leaves enough outliers to account for an over 40% decrease in claims approved for mental illness.

@ 12:09 and 12:33, I love how decision writers have become the ones who decide whether the ALJ proposed decision is contrary to law. Not sure when you guys jumped over the ALJ in the pecking order.

I would venture to guess that the legal deficient decisions you send back to the ALJs are a far greater number of proposed allowances as opposed to denials. No one within the Agency seems to care much about legally deficient denials.

I know you guys only get paid if you win but the total inability to see the other side on here can become a bit exhausting.

Actually its only happened to me a few times. I think its about equal I have presented listing level severity evidence to a judge to pay a case. And again I'm not jumping over anyone I first ask them maybe I'm confused, then I tell them why I think they're wrong they tell me their reasoning... again this usually happens when they are blatantly wrong so I have had a judge tell me that he personally doesn't agree with the policy. At that point, I send it back to my supervisor each time they have agreed with me and at that point its a management issue. As I said before the HOCALJ doesn't make them change it they just write it themselves. I'm not being losing bonus money because someone doesn't want to follow policy. Remand rate is factored into our "demonstrates job knowledge" element of our performance appraisal which I don't think it should be because its not my decision. If I wasn't rated on it I could basically care less. But again no one is jumping over anyone and no one is forcing an ALJ to change their decision. Ultimately the ALJs are not my boss they don't write my performance appraisal.

Easy. Astrue hired a bunch of new ALJs to come out of the box denying. We are seeing the fruits of these hires. Also I have seen previously higher-granting ALJs (over 60-70 percent) being pressured to deny more off the record.

SSD/SSI has always been political. Politics always come into play. Clients and citizens are an afterthought. If Dems get into the House and the new SSA commissioner highs more ALJs, presumably the numbers should rise.

I worked as a disability analyst for two state agencies for a total of 14 years then became a licensed psychologist. In 2011 when I put up my shingle I had so much work as a CE vendor doing both testing and regular psychiatric assessments I was scheduled 3-4 months in advance. In mid-2014 suddenly everything came to a screeching halt. When I inquired was told "cutting out psych CEs is the best way for the agency to save money." Since then the CEs have only trickled in here and there. My take is that administrators want to be seen as budget tight so they won't lose their jobs. Also there is just less money in the budget with Republicans holding the entire SSA hostage, esp.the disability program, as anyone following the news the last couple years would know. I have also heard that administrators have been making decisions on psych claims instead of docs which is illegal. What has happened to social services across the board for adults with mental illness in the last 5 years is one of the greatest tragedies in this country's history.

The agency is highly politicized, and those who don't see that are asleep, uninformed, or in denial. It is driven by whichever way the Congressional winds blow - because that's where it gets its funding!

5:31, pecking order is irrelevant to whether one can identify whether the law is followed. Strange how you want ALJs to have all this power...unless they deny claims.

You have a duty to your clients, I get that. But your livelihood depends on advancing only one outcome. Writers get paid regardless of the outcome, and have an incentive to appeal-proof their product at agency and court level. So you all should lay off on the agency conspiracy theories because you are starting off on the wrong foot to begin with.

Some good theories posted above. It would be worthwhile to test some of them. I can understand how advocates for people with mental illness would be concerned by the numbers, so SSA would do well to get to the root of it.

-Look at percentages of intellectual disability and mental illness claims granted 2010 vs. 2014 as opposed to just the total number granted.-Was funding truly cut for mental CE's and IQ testing by SSA or particular DDS offices? If so by how much? Did that mean a higher percentage of such claimants did not get fully developed claims?-Did the mental illness approvals drop more in states where better health insurance availability through Obamacare made mental health treatment more available to claimants? -During the period in question, did SSA conduct trainings or put out internal publications to adjudicators that might have caused a trend towards more denials of such cases?-Did some adjudicators feel pressure to cut back on approvals?

I believe that in the past few years many cases that would formerly been evaluated under ID may have been evaluated under LD, autism spectrum, or other disorders that could potentially lower measured IQ. I have worked for three different DDS and have never seen pressure to deny cases. DDSs do not have discretion to ignore the laws, rules and allo or deny as they see fit. A significant proportion of cases are reviewed at the federal level. In the past you might have been able to say that the different regional DQBs evaluate differently but that dis not the case now that' cases are electronic and a case can be reviewed at any DQBS around the country. Returns are as likely because they believe a case was denied incorrectly than if it was allowed. Responses to RPCs (when the DDS rebuts a return) often seem arbitrary to me but again are not weighted towards denials. In response to a good question from 11:40 I believe overall more allowances occur in jurisdictions with good mental health available because we are better able to demonstrate a longitudinal history.

I would add this. If I know that DQB or our internal QA is more likely to pull a case for review with diagnosis x I am more likely to give y as the primary dx and x as the secondary. There have also been disincentives against equalling cases so many cases that I believe equal the criteria have instead been been done as med voc ---unable to sustain cases.

Is 5:32 not inaccurate in saying: "Returns are as likely because they believe a case was denied incorrectly than if it was allowed"? SSA performs preeffectuation review on a rather massive sample made up of 50% of all allowances and 0% of all denials. There is a separate randomly selected Quality Assurance review sample. I believe the size of that sample varies from time to time, but I am pretty sure that it is miniscule (less than 5%) in size compared to the preeffectuation sample. I think that an allowance is far more likely to be returned than a denial.

I'll just add to the pile and say I disagree about there being no real political pressures at SSA. There is political pressure at SSA, but it isn't partisan dem/rep politics. We enjoy the petty personal/tribal kind :)

A lot of previous commenters have hit on the factors making those number drop--decreased apps overall (percentages would be better than totals as was pointed out earlier), cracking down on 85-15/96-8p/etc. abused RFCs, looking at 12.xx Meets cases a lot harder, etc. etc.

From above: but must be supported by evidence of deficits in adaptive functioning which were present prior to age 22.

Unfortunately the schools in our area have started destroying school records once the student reaches age 18 or graduates. This eliminates any hope of IQ scores or special ed records from our local schools to help establish the prior to age 22 requirement.

The best indicator of the quality of recent ALJ decisions, is to see what is happening with the number of claims being appealed to the USDC. As attorneys will generally not file meritless appeals to USDC, more USDC appeal = more flawed unfavorable decisions.

The USDC in my Judicial District is remanding 45% of cases that are appealed to it. Richard Posner, a Reagan appointed judge, has threatened to sanction the agency on numerous occasions for failing to follow Court orders. He has also criticized the garbage quality of many of the ALJ decisions that come before him, and the fact that SSA's attorneys seem to defend even the most indefensible ALJ decisions.

lolol, that's rich. Anecdotally, though, I will say that in my office, more than half our attorneys know the law INFINITELY more than all but one or two of our ALJs. I doubt we are unique in that manner.

Also, I am reminded of--Voltaire I believe it was--who said: "I can add two and two as well as God." Who cares if ALJs are higher on the pecking order? I can read the law as well as them. We aren't talking super nuanced stuff, but like making sure a job meets the three criteria to be PRW.

Someone mentioned that higher paying ALJs were being forced to pay less. Not really. SSA never tells an ALJ how to decide a case, and I fully believe that. What SSA mgmt. DOES do is enforce production demands and, more recently, policy compliance and legal defensibility in decisions.

As a former writer, it never ceases to amaze me how ALJs complain about their judicial independence being impeded by production quotas, having to make all legal findings charged under the regs and other binding policy in their instructions, having to follow the law in their decision making, etc. etc. In about 99.9999% of cases, there is ample evidence to jump over the "substantial evidence" burden hurdle and support a well-reasoned, policy-compliant decision for FF, UF, or PF.

Not that this is appropriate, but if ALJ X wanted to pay/deny a claim, he or she has plenty of evidence to do so within the bounds of the law in almost all their cases. So to hear ALJs complain that not being able to have an RFC that is simply "cannot sustain any work activity over an 8-hour day/40-hour workweek" (how hard is it to just list the few limitations that led you to that conclusion???) or some such encroaches on their judicial independence...sheesh, with minimal effort (you could always enlist your writers for help, too) you can get a policy compliant decision that makes pretty much whatever ultimate conclusion you'd like.

So to go back to my original point, those formerly high payers--my guess is that many of them are older ALJs who never learned the law and, rather than do so and put a little more effort into their decision making, gave up on paying as many cases as they would like to avoid the staff of SSA mgmt.

I just love how decision writers are so full of themselves here. If you guys and gals were such legal scholars, you wouldn't have ended up working as a writer for ODAR unless you have other deficiencies, like perhaps serious personality flaws.

Aljs are insecure about maintaining their perch on the ODAR pecking order and engage in denigrating writers because they know that their duties as aljs are at a much lower level of complexity than those of ALJs in other agencies throughout the federal government. ALJs at other agencies know it, SSA aljs know it, and writers know it. It is the big elephant in the room. SSA aljs are a costly burden to the taxpayer. Why should we pay SSA aljs - who decide non-adversarial disability cases with largely uncomplicated legal issues - the same salary as SEC ALJs deciding complex contested securities cases or FTC ALJs deciding complicated trust busting issues?

I also wonder why SSA chose to structure ODAR such that an ALJ is the highest management official in a hearing office. I've heard they did it to mimic an Article III judge's chambers, but that doesn't make sense since...well, that one pretty much writes itself, doesn't it?

@ 8:09PM....When I can make more money just in EAJA fees alone than any writer's salary, that sure says a lot about the quality of the writing. I probably shouldn't complain though. And the district court work is just an adjunct part of my practice. Keep up the good work!

The law is the law. There are 4 steps to meeting Listing 12.05. One, an IQ of 70 or below. Two, obtained before the claimant turned 22. Three, with deficits in adaptive functioning. And, four, with an additional severe impairment.

Before quality review initiatives, the representative bar persuaded many ALJs that Listing 12.05C had but two requirements: an IQ of 70 or below, and an additional severe impairment.

Now that the law is back in play, the deficits in adaptive functioning, and the IQ score established before age 22, must once again be proven.

You could argue that the quality review initiative came about as a defense against Darrell Issa (and his successor, Jason Chaffetz).

However, the fact that Listing 12.05C has four prongs, not two, should be a universal fact, not subject to representative or ALJ whimsy. Decisional independence doesn't allow one to cut a Listing in half, does it?

@ 9:56AM. I take issue with your suggestion that 12.05 requires that the IQ be obtained before age 22. The Listing actually says "deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." Nowhere does it say that there has to be IQ scores obtained before age 22. Thus in a case where the only IQs are after age 22, but there is evidence of adaptive deficits before age 22, the Listing could still be met.

You would be imposing an additional requirement that is not present in the Listing by requiring IQs before age 22.

Perhaps the economy has something to do with it. Maybe the allowance rates were highest in 2010 because we were at the peak of the Great Recession. As the economy has improved, some with mild ID have been able to find work. Many people with an IQ in the high 60s are able to work at simple, unskilled jobs. Also, I believe most people would rather work if they can.

Or it could be that ALJ's and writers are misinterpreting the Listings like @9:56AM. I'm sure there are a whole host of factors at work here from just coding things differently, ALJs finding new ways to approve claims while avoiding the scrutiny that comes with 12.05, to a decrease in psych CEs being ordered by DDS.

10:16 noted, "Thus in a case where the only IQs are after age 22, but there is evidence of adaptive deficits before age 22, the Listing could still be met." And just what would you use to document and support adaptive deficits prior to age 22?? Especially when 20 years later they have a 16 year work record??

@ 12:10PM. It would be very case specific. I have previously used records showing placement in "EMR" classes (without having IQs in the work record), having to explain to the ALJ that EMR referred to educable mentally retarded.

A 16 year work record would not preclude a finding of deficits in adaptive deficits. Work is only one of several areas of functioning to look at and the circumstances of the work obviously make a difference. I have a client who has worked his entire life for a family owned business and has received accommodations in his work the entire time. Now that he has developed a secondary severe impairment, he would satisfy the Listing under 12.05C.

The whole premise of 12.05C is that an IQ of 70 or below would not by itself be disabling but when coupled with a secondary severe impairment that further limits the ability to function in work it is deemed so. So working in the absence of a secondary severe impairment is not inconsistent with the Listing at all.

"Someone mentioned that higher paying ALJs were being forced to pay less. Not really. SSA never tells an ALJ how to decide a case, and I fully believe that. What SSA mgmt. DOES do is enforce production demands and, more recently, policy compliance and legal defensibility in decisions."

Wrong. ALJs have told me off the record there has been pressure off the record to deny.

Also, we have caught some MEs listing less. There was an ME who basically listed 70 percent of his cases prior to 2011. Now it's about 30 percent. Why? The ME is a lawyer and somebody told him he was not looking at the listings right.

My problem with this is two-fold. Fine if you want to go after the high-granting ALJs. On the flip side, you need to talk to the lower granting ALJs (lower than 40 percent). Both sides may not be looking at the evidence entirely.

Nice point @3:11PM about the change in ME behavior. Its just one of many ways for the Agency to rig the system against the claimants.

I had a recent off the record discussion with an ALJ who frankly told me he did not like a particular ME because the ME frequently testified that claimants met a listing. So the ALJ was trying to avoid using that particular ME. We have other cases where the same ME (who never provides testimony favorable to a claimant) seems to be called time and time again by a particular ALJ but no other ALJs in the office.

how often are you using MEs??? I guess the offices I have worked/been in are anomalies (or yours is?) because I would guess the ALJs I see use MEs at a rate of somewhere between 5 and 10 percent, and the number is definitely closer to 5.